When people think of domestic violence, their minds often turn to violence between intimate partners. We should also consider the impact of domestic violence on child custody. We all know that some children are subjected to domestic violence directly, but what happens if a child witnesses domestic violence carried out against a family member? Could parents lose custody?
85 percent of all children who live in homes where there is domestic abuse will witness the abuse. Seeing that abuse is emotionally traumatizing. We know this because kids who live with an abuser, even if they are not the target, experience a myriad of problems. Several states have legislated a rebuttable presumption against awarding custody or joint custody to domestic violence perpetrators.
IT SEEMS OBVIOUS THAT CHILDREN SHOULD NOT BE WITNESSES TO ABUSE. BUT WHAT IF THEY ARE?
One report on the impact of domestic abuse on children (Lehrman, 1996) offers three reasons to deny custody to a perpetrator:
- The perpetrator ignored the child’s interests by harming the other parent;
- Perpetrators often continue their controlling and threatening behavior even after the parents are separated;
- Perpetrators who have custody of their children often use them to control the other parent.
For these reasons and others, if evidence shows that a family member has committed domestic abuse, this will affect that person’s ability to retain custody of a child. The court shall not place a child in the custody of a parent who presents a substantial risk of harm to that child. (T.C.A. 36-6-112).
The Court includes in its decision a written finding of all evidence, and all findings of facts connected to that evidence. Additionally, the Court may refer any issues of abuse to the juvenile court for further proceedings. (T.C.A. 36-6-106(a)(11)).
This is most commonly done through a dependency and neglect petition. Those are usually brought by the Department of Children Services (DCS) when investigating allegations of child abuse. The Court will likely impose a restraining order to prevent contact between the children and the abusive parent in that scenario. If the Court finds that neither parent is fit to have custody, temporary custody may be awarded to a relative. Alternatively, the children might be put into foster care.
SOMETIMES, A PARENT RATHER THAN THE COURT OR DCS WILL ALLEGE CHILD ABUSE.
If a parent makes a good faith allegation based on a reasonable belief that the child is the victim of abuse, neglect, or the effects of domestic violence, and if that parent acts lawfully to protect or seek treatment for the child, then that parent shall not be deprived of or restricted in custody, visitation, or contact with the child. (T.C.A. 36-6-112).
A parent may also obtain an order of protection on behalf of their minor children. Orders of Protection are granted based upon evidence that the abusive parent physically or threatened to physically harm the child or parent, destroyed property, or harmed or threatened to harm a family pet. If granted, the order of protection can last a year or more. It is meant to prevent all contact between the abusive parent and the affected children.
Looking for an order of protection? Call today to schedule a case assessment with a Held Law Firm attorney: (865) 685-4780.
